Around noon, March 27, 1984, the badly beaten, naked body of Neal McClain was found in a secluded wooded area of Berkeley Township. Police investigation led to defendant who voluntarily came to the prosecutor's office that night. At 11:58 p.m. he signed a form entitled "Consent to Question" which read as follows:

I hereby acknowledge that I have voluntarily agreed to answer questions by representatives of the Ocean County Prosecutor's Office. I have been advised that these questions will pertain to Neal McClain. I am appearing for this

questioning voluntarily, and I am aware that I am free to terminate the questioning and leave at anytime I so choose.

According to the detectives, the form is used primarily for preliminary interviews before it is known whether the party questioned is a witness, suspect or target of an investigation. When they began questioning defendant all that the officers knew about him was that he had been with decedent on the night of March 24 to 25, 1984, the probable date of death.

When defendant was shown a picture of McClain he first said he was unable to identify it. He stated that he had been at the Villager Inn that night with some friends and afterward visited the Riverside Pub. However, he later admitted that he had met the man pictured in the photo that night at the Pub. He also acknowledged that he took a ride with McClain, Nicholas Correa, and an unidentified man somewhere in Toms River where an altercation occurred between McClain and the other two. He also said that he witnessed Correa and the unidentified man beat up McClain.

At no time during the questioning, until defendant made his first incriminating statement, was defendant advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), but the investigators claimed that he was free to leave and was not under arrest. They testified that defendant never asked to leave, to use the bathroom or the telephone or to be brought water. Defendant was described as being very quiet, nervous and cooperative. The questioning continued, however, because the investigators felt he was not being truthful.

At approximately 3:00 a.m. defendant was told that Correa, who was being questioned in another room, had just confessed and had implicated defendant. At that point, defendant blurted out "I did it," and agreed to reveal his involvement in the homicide. The interview then terminated, defendant was placed under arrest and advised of his Miranda rights, which he thereupon waived in writing. The questioning resumed and defendant gave a statement in which he described how he and

Correa had beaten McClain to death in the early hours of March 25, 1984. The statement, which had been taped, was reduced to six written pages. Defendant signed the statement and initialed each page. At the trial, defendant's initial admission, "I did it," and the written statement which followed the giving of the Miranda warnings were received in evidence.

Defendant contends that his initial verbal admission was given while he was in a custodial situation and in response to police interrogation. Because he had not first received his Miranda warnings he argues that it should not have been received in evidence, and because the later written statement was thereby "tainted," that, too, should have been excluded from the trial.

In analyzing defendant's contention our first inquiry must be whether or not he was in custody at the time he made his initial admission of guilt. The fourfold warnings enunciated in Miranda v. Arizona, supra, are required only when the subject is in custody or otherwise deprived of his freedom of action in any significant way. Id. at 477, 86 S. Ct. at 1629; State v. Graves, 60 N.J. 441, 448-449 (1972). That questioning takes place in a coercive environment is not enough to trigger the Miranda requirements since any interview of a suspect by a police officer will have its coercive aspects. Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977). Nor are warnings required simply because questioning takes place in a police building or because the person being questioned is a suspect in the case. Ibid; State v. Downey, 206 N.J. Super. 382, 396 (App.Div.1986). The test is whether the admission was a product of "custodial interrogation." State v. Graves, supra, 60 N.J. at 448; State v. Marks, 201 N.J. Super. 514, 527-528 (App.Div.1985).

The trial court found that the interrogation was not custodial. Its conclusion was based on defendant's voluntary presence at the prosecutor's office and his written acknowledgement that he knew he was free to leave. Defendant replies that he was

picked up from his home and transported to the prosecutor's office by an investigator, that the prosecutor's office already had information that he was with McClain on the night of the killing and that he had seen him beaten by Correa and the other man. Further, the interrogation continued without interruption for three hours until defendant was confronted with a confession by his accomplice inculpating the two men. The State's rebuttal is that defendant remained free to leave even after Correa's confession because, it states, it still did not have enough evidence to arrest him.

Although the factual findings of a trial judge will not be disturbed if they are based on sufficient credible evidence in the record, we will not hesitate to make new findings where they are not exclusively factual but are intertwined with legal conclusions drawn from Miranda and its progeny. State v. Godfrey, 131 N.J. Super. 168, 174-175 (App.Div.1974), aff'd o.b. 67 N.J. 267 (1975). Thus, a statement by a police detective to the effect that a suspect was free to leave may be incredible and not worthy of belief as a matter of law. State v. Godfrey, supra, 131 N.J. Super. at 177. In Godfrey, defendant had come voluntarily to the police station and was administered a polygraph test. He was told that he had lied and he then confessed. Id. at 172-173. Pointing out that custody does not necessarily involve a formal arrest or physical restraint, we ...

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